"The supreme court, in appeals or writs of error, shall examine the record, and on the facts therein contained alone shall award a new trial, reverse or affirm the judgment of the district court, or give such other judgment as to them shall seem agreeable to law." Section 2190, Comp. Laws N. M.

"No exception shall be taken, in an appeal, to any proceeding in the district court, except such as shall have been expressly decided in that court." Section 2188, Comp. Laws.

There is nothing in section 2190, above quoted, authorizing the court to hear the case brought by appeal or writ of error, or upon grounds other than such as appear to have been made in the court below and considered there, or to create, by construction or intendment, new and distinct issues. While it is true that section 2188 applies to appellants, and denies to them the right to assign errors and insist upon them, unless expressly decided in the district court, it will apply with equal force, by inference and analogy, to appellees who seek to shift the ground on which the bill and decree stand, in order to lay hold of a surer footing in equity, when that ground was not covered in the cause as it stood in the lower court.

The decree is reversed, with costs against appellees, and the cause remanded for further proceedings, with leave to complainants, if they so elect, to amend their bill, otherwise to dismiss the cause.

LONG, C. J., and BRINKER, J., concur.

(71 Cal. 481)

BRALY v. HENRY. (No. 11,521.)

(Supreme Court of California. December 29, 1886.)

PROMISSORY NOTES-PROOF OF PAROL CONTEMPORANEOUS AGREEMENT-CONSIDERATION. In an action on a promissory note, by the payee, or by one taking it with full knowledge of the facts, the maker may, by way of defense, prove a parol contemporaneous agreement that, though the face of the note showed a sum certain, the note having been given for the price of a stack of hay, if the value of such hay at a fixed price per ton did not amount to the face of the note, a rebate and credit was to be made in the maker's favor of the difference between the actual value of the hay and the face of the note, and that, under such agreement, a less sum is due than that sued for; following former decision, 11 Pac. Rep. 385.1

In bank. Appeal from superior court, Fresno county.

Nourse & Church,

On rehearing. Action on promissory note. See 11 Pac. Rep. 385. Grady & Merriam and E. E. Calhoun, for appellant. for respondent.

SEARLS, C. This is an action upon a joint and several promissory note, made by defendant and one W. E. Henry, on the twenty-sixth day of October, 1883, for $1,364, and interest at 12 per cent. per annum, payable four months after date, to T. E. Hughes or order, and averred to have been indorsed to plaintiff before maturity, and upon which there is claimed to be due the sum of $321.15, and interest thereon at 12 per cent. per annum from November 24, 1884. Plaintiff had a verdict and judgment as prayed for in his complaint; from which judgment, and from an order denying a new trial, defendant appeals. The cause was decided by department 1 of this court, in an opinion reversing the judgment and order appealed from. 11 Pac. Rep. 385. On petition of respondent, a reargument was ordered in bank, and the cause again comes up for consideration. The facts essential to an understanding of the question involved are set out in the former opinion, and need not be reproduced here.

Upon a review of the record, in the light of the scrutiny invoked the proceedings had in the cause subsequent to the decision referred to, we see no just cause to doubt the soundness of the views expressed in the opinion, or

1See note at end of case.

for changing the conclusion reached therein. It is true that, as a general rule, parol evidence is not admissible to control, contradict, or vary a written instrument. It is equally true that there are certain legal presumptions indulged in favor of negotiable paper, with a view to facilitate its use and negotiation in commercial transactions, among which are: (1) That, until the contrary appears, every negotiable bill or note is presumed to be founded upon sufficient legal consideration; (2) that the holder and possessor of a bill or note is the true owner; (3) that paper, properly indorsed, was so indorsed before due; (4) that the holder of a bill or note took it in the usual course of business, before maturity, for value; (5) that the maker of the note is the primary debtor, and that the acceptor of a bill of exchange is primarily liable thereon.

These and other presumptions, indulged by the process of artificial reasoning known as conclusions of law, and formulated for the advantage of commercial interests and intercourse, are not conclusive, but are liable to be rebutted by parol evidence that the facts are different from what the law in their absence presumes. The burden of proof in such cases is upon the party who wishes to rebut the presumption. It is not received to contradict or vary the instrument, but to repel the presumptions of law which, in the absence of such proof, arise in its favor.

As between the original parties to a promissory note, or as to one taking it with notice of the facts or after maturity, a consideration is as essential to its validity as in case of other contracts. The maker may, as to such parties, defeat the note in toto, by showing there was no consideration whatever, or, by showing that there was only a partial consideration, may pro tanto defeat a recovery. Story, Prom. N. § 187.

In making proof of the want of consideration in such cases, the maker of the instrument, in effect, says that he made the instrument, but that the presumed legal effect does not follow, because it lacked the consideration essential to uphold all contracts, whether verbal or in writing. It no more changes the contract than does proof of payment or any other defense, which admits its execution and avoids its legal effect. A want of consideration must not be confounded with mere inadequacy of consideration. The latter cannot be set up to defeat a note. To illustrate: A. sells to B. 10 horses, at $100 each, and takes his note. B. cannot, in an action on the note by the payee, in the absence of fraud, show the horses to have been worth less than the agreed price, and thus abridge the recovery, as it would only establish an inadequacy of consideration, but he may show that none of the horses were delivered, and thus defeat the recovery; or he may show that five only of ten horses were delivered, and defeat a recovery pro tanto.

Apply the doctrine to the present case. Defendant, according to the testimony offered, purchased a given number of tons of hay, at a given price per ton, and gave his note for the amount. The quantity when weighed proved to be less by a number of tons, which multiplied by the price per ton, equaled $321.15. If the proffered evidence stopped here, defendant, as against the plaintiff, if the latter took with notice, would have been entitled to a proportionate reduction upon the sum called for by the note; and we are unable to see how defendant's rights are abridged by the fact that the parties, not knowing the quantity of hay, agreed that, if it fell short of the estimated or supposed quantity, a corresponding credit should be given on the note.

We are of opinion the judgment of reversal heretofore entered should stand as the judgment in the case.

We concur: BELCHER, C. C.; FOOTE, C.

BY THE COURT. For the reasons given in the foregoing opinion, and in the opinion of department 1, (11 Pac. Rep. 385,) the judgment and order are reversed, and cause remanded for a new trial.

NOTE.

PROMISSORY NOTES. FAILURE OF CONSIDERATION, total or partial, or the want of consideration, constitute a good defense to an action on a promissory note between the original parties to it, Lancaster Co. Nat. Bank v. Huver, (Pa.) 6 Atl. Rep. 141; Fleetwood v. Brown, (Ind.) 9 N. E. Rep. 352; Blacker v. Dunbar, Id. 104; Fritzler v. Robinson, (Iowa,) 31 N. W. Rep. 61, Security Bank v. Bell, (Minn.) 21 N. W. Rep. 470; Maltz v. Fletcher, (Mich.) 18 N. W. Rep. 228; Kennedy v. Goodman, (Neb.) 16 N. W. Rep. 834; Brooks v. Hiatt, (Neb.) 14 N. W. Rep. 480; Torinus v. Buckham, (Minn.) 12 N. W. Rep. 348; Kansas Manufg Co. v. Gandy, (Neb.) 9 N. W. Rep. 569; Dicken v. Morgan, (Iowa,) 7 N. W. Rep. 145; Search v. Miller, (Mich.) 1 N. W. Rep. 975; State Sav. Ass'n v. Barber, (Cal.) 11 Pac. Rep. 330; Davis v. Wait, (Or.) 8 Pac. Rep. 356; Estudillo v. Aguirre, (Cal.) 5 Pac. Rep. 109; Staab v. Ortiz, (N. M.) 1 Pac. Rep. 857; and parol evidence is admissible to show the true consideration, Buscher v. Knapp, (Ind.) 8 N. E. Rep. 263; Maltz v. Fletcher, (Mich.) 18 N. W. Rep. 228; Dicken v. Morgan, (Iowa,) 7 N. W. Rep. 45; Talmadge v. Stretch, (Cal.) 4 Pac. Rep. 15.

(4 N. M. [Gild.] 14)

WHEELER v. FICK.

(Supreme Court of New Mexico. January 8, 1887.)

APPEAL BILL OF EXCEPTIONS AND RECORD-TRIAL JUDGE TO SETTLE-SUCCESSOR NOT AUTHORIZED.

The record and bill of exceptions must be settled by the judge who heard the case, and a judge who succeeds the trial judge, and has not heard the case, has no authority, under the rules of the supreme court of New Mexico, to settle or sign the

same.

Error to district court, Colfax county.

Frank Springer, for defendant in error, Fick.

It is the universal practice, both at common law and under codes, that the memoranda of matters excepted to be taken at the time of the occurrence, and that these be formally embodied in a bill signed by the presiding judge during the term, or within some short time thereafter, while the recollection is yet fresh. The New Mexico statute requires the bill to be signed within 30 days after judgment, unless the time is enlarged by the court or judge. Comp. Laws, § 2198. This court has limited the time to 10 days after entry of judgment, unless the time is extended by the court. Rule 24. It was never intended to authorize a practice so vicious as has been attempted by the plaintiff in error in this case. The remarks of Chief Justice MARSHALL on this point are very appropriate: "The court will observe that there is something in this proceeding which they cannot, and which they ought not to, sanction. A bill of exceptions is handed to the judge several weeks after the trial of the cause, and he is asked to correct it from memory. The law requires that a bill of exceptions should be tendered at the trial. But the usual practice is to request the judge to note down in writing the exceptions, and afterwards, during the session of the court, to hand him the bill of exceptions, and submit it to his correction from his notes. If he is to resort to his memory, it should be handed to him immediately, or in a reasonable time after the trial. It would be dangerous to allow a bill of exceptions of matters dependent on memory, at a distant period, when he may not accurately recollect them, and the judge ought not to allow it." Insurance Co. v. Lanier, 95 U. S. 171. See, also, Consaul v. Liddell, 7 Mo. 250; Williams v. Ramsey, 52 Miss. 859; Rankin Co. Sav. Bank v. Johnson, 56 Miss. 125; Myer v. Binkleman, 5 Colo. 133.

The authorities as to the relative duties and powers of the ex-judge and the incumbent judge, in cases of this kind, are considerably at variance. In Michigan it has been held that where a party has lost his exceptions by death, resignation, or removal of the judge, he shall have a new trial. Scribner v. Guy, 5 Mich. 512; followed in Van Valkenburg v. Rogers, 17 Mich. 322; Tefft v. Windsor, Id. 425; Tucker v. Tucker, 26 Mich. 443; Crittenden v. Schermer horn, 35 Mich. 370.

v.12p.no.14-40

In Indiana, under the provision of the statute, several cases decide that an ex-judge cannot sign a bill of exceptions. Smith v. Baugh, 32 Ind. 163, also Ketcham v. Hill, 42 Ind. 64; Toledo, etc., Ry. Co. v. Rogers, 48 Ind. 427; McKeen v. Boord, 60 Ind. 280. But these cases lose sight of the distinction which exists between "settling" the facts, and formally signing and sealing the bill; and their reasoning is somewhat shaken by the later case of Lee v. Hills, 66 Ind. 474-482.

The supreme court of Wisconsin has held just as positively that it is for the judge who tried the case to settle the bill of exceptions, though out of office. Fellows v. Tait, 14 Wis. 156; Davis v. Menasha, 20 Wis. 205; Hale v. Haselton, 21 Wis. 325.

In Pennsylvania a judge out of office may be compelled by certiorari to sign and seal a bill of exceptions. Galbraith v. Green, 13 Serg. & R. 86.

In Arkansas, where a case is tried before a special judge, he is the proper one to sign a bill of exceptions, and not the regular judge; and, if signed by the latter, it is a nullity. Watkins v. State, 37 Ark. 370. So in Illinois. David v. Bradley, 79 Ill. 316.

These last authorities are in harmony with the principle laid down in Tidd's Practice, (page 863,) that bills of exception must be signed by the judge before whom the case was tried. See, also, Law v. Jackson, 8 Cow. 746.

In New Mexico the practice is governed by the rule of the supreme court. There is no authority, either in the statutes or rules, for settling a bill of exceptions upon affidavits. When rule 24 declares that the record and bill of exceptions shall be submitted, etc., "to the district judge, before whom the judgment was obtained, for settlement," it does not mean that some other judge, before whom the judgment was not obtained, and who has no personal knowledge of what occurred upon the trial, shall try and determine, for purposes of review, upon ex parte statements, what was the true history of the trial outside of the record. Our rule adopts the Wisconsin and Pennsylvania practice in preference to that of Michigan and Indiana, and that is the end of discussion on the subject.

Fiske & Warren, for plaintiff in error, Wheeler.

BRINKER, J. This is a motion to strike out the record and bill of exceptions. On the thirtieth day of April, 1885, plaintiff recovered a judgment in the district court of Colfax county against defendant, in an action of assumpsit, for the sum of $1,800. On the same day defendant filed his motion for a new trial, which was then overruled, and leave was given him until the first day of the next term to prepare his proposed record and bill of exceptions. On May 25th, Hon. S. B. AXTELL, the judge of the district court, resigned. On June 10th, Hon. WILLIAM A. VINCENT qualified as Judge AXTELL'S successor. On December 9th, Hon. E. V. LONG qualified as judge of said court, succeeding Judge VINCENT.

The regular terms of the district court for Colfax county commence on the third Mondays of April and September in each year. Comp. Laws 1884, § 543; Acts 1884, p. 54, § 1. The defendant failed to prepare his proposed record and bill of exceptions on the first day of the September term. At all events he submitted none for settlement on that day, or during that term.

On December 24, 1885, the following stipulation was filed: "It is hereby stipulated and agreed by and between the parties to the above-entitled cause -First, that the plaintiff, Henry Fick, and defendant in error on review, by writ of error sued out in said cause from the supreme court of the territory of New Mexico, will enter his appearance in said cause in the said supreme court, and make no objection to the hearing of said cause and a decision thereon in said supreme court, because of the fact that the record and bill of exceptions, assignment of errors, and briefs of plaintiff in error in said cause

shall not be filed in said supreme court within the time provided by statute of the territory of New Mexico, and the rules of said supreme court; all objection to any such hearing and decision because said record, assignment, and brief on review shall not be filed in said supreme court within the time as now provided by law, and the rules of said supreme court, being hereby expressly waived, provided said record, assignment, and brief be printed and filed in the said supreme court on or before the tenth day of January, A. D. 1886."

On the same day Judge LONG ordered that the hearing for the settlement of the proposed record and bill of exceptions, and the proposed amendments thereto, be had before him at chambers in Santa Fe on the thirtieth day of December, 1885, and that until that day both parties should have leave to file with the clerk affidavits in support of or against the correctness of such proposed record and bill of exceptions, and the proposed amendments thereto, and that, in accordance with the stipulation of the parties that day filed, all exceptions or objections to the time within which the record, assignment of errors, and brief of counsel for plaintiff in error should be filed in the supreme court were waived, and that that order and the stipulation should be made a part of the record. The plaintiff then and there objected to Judge LONG settling the record and bill of exceptions, for the reason that he had no authority to do so, the cause not having been tried before him, and he having no personal knowledge of what took place upon the trial. Judge LONG overruled these objections, and stated that he would settle the bill of exceptions upon such affidavits as the parties should present. In pursuance of this order, the parties again appeared before him on December 30, 1885. The defendant submitted affidavits in support of his bill; plaintiff protesting against the regularity of the proceeding, and expressly stating that he waived no objections thereto; also submitted affidavits against said bill, and in support of his proposed amendments. The judge then settled and signed the record and bill of exceptions upon information derived solely from the affidavits and papers produced before him, and without any personal knowledge of the proceedings had upon the trial, notwithstanding the continued objections of plaintiff.

In support of the motion it is contended that Judge LONG had no authority to settle and sign the proposed record and bill of exceptions, because he did not preside at the trial, nor render the judgment. It is also insisted that the motion should be granted because the time allowed to defendant to prepare and submit the proposed bill had expired before the same was submitted, and before any application was made for an enlargement of the time. The stipulation does not affect this motion, and it will not be considered. If the first point be sustained, it will be decisive of this case, and render the examination and determination of the other unnecessary.

The authorities upon the question whether the retiring judge who presided at the trial, or his successor, should sign the bill of exceptions, are in irreconcilable conflict; many courts of high distinction holding that the ex-judge should sign the bill, and many others of equal distinction and respectability holding that the incumbent should perform that duty. Any attempt to deduce from these varying decisions a uniform rule must meet with disaster. Happily, we are relieved from this unwelcome task by the terms of our own rules. Rule 24, § 1, provides that "whenever it shall be intended to review, by appeal or writ of error, a judgment of the district court, a record of the pleadings and proceedings in the case containing a proposed bill of exceptions shall be proposed by the appellant, and a copy thereof served on the opposite party, or his attorney, within ten days after entry of judgment, unless the time is extended by the court; and the party served may, within ten days after such service, propose amendments to the proposed record and bill of exceptions, and serve a copy of such amendments on the appellant, who may